PUBLISHED BY MS HARINDER NARVAN, MS APARNA JAIN AND MS AASHRIKA AHUJA AS ON 30.10.2023

INTRODUCTION

Will is a legal document or declaration that a person makes during his/her lifetime in order to plan the distribution of his/her assets and properties according to his/her wishes after his /her death. A written will not only makes estate planning efficient and effective but also enables the family members of the deceased to avoid unnecessary family feuds and litigation after the death of testator. Moreover, it helps to secure the interests of legal heirs of the deceased from any relatives or claimants who may arise post the death of the deceased to claim their share. The need for long drawn out litigation also reduces with a proper will in place.  The provisions under the Indian Succession Act, 1925 and Hindu Succession Act, 1956 deal with a will made by any Hindu, Buddhist, Sikh or Jain in India. Muslims are not bound by this act as such and disposition of their properties takes place by the requirements as laid down under Muslim Law. Apart from this, the most important purpose that a will serves is the differentiation of the nominee from the beneficiary. A nominee is that individual who holds the property before its final allocation as per the lines of the will drawn, while the beneficiary is the one who receives the property ultimately. A will helps the testator to efficiently allocate a nominee for the distribution of assets as per will. The process by which testator’s will is made legally valid is called execution.

ESSENTIALS OF MAKING A WILL

There are various essential elements of making a will as per law in India which are laid down under the Indian Succession Act, 1925 and are as follows:

1. Every person who writes a will must be of sound mind and above 18 years of age. This bars people of unsound mind and minors from drawing a will.
2. Any person who is incapable of making a valid judgment or is in an inebriated state of mind by the reason of intoxication or illness where he is unable to understand the consequences of his/her acts is not allowed to draw a valid will.
3. Any part of a will that has been forced or induced to be made by force, coercion, or threat or whatever has not been drawn while writing a will with free consent is invalid and not enforceable by law.

REVOCATION OF WILL

A will can be revoked:

• Revocation by the execution of a subsequent will
• Revocation by a writing declaration with an intention to withdraw the will
• Revocation by burning the will papers
• Revocation by tearing the will papers
• Revocation by otherwise destroying the will papers

It is noteworthy that once a will is revoked by any of the means, it will become non-operational. At Knowledgentia Consultants, which is the best law firm in India, we offer all kinds of services relating to drafting, execution and enforcement of will. We also handle all kinds of litigation relating to wills as per the Indian laws.

KEY ASPECTS OF WILL:-

1. Details of the Testator– Name, age, address and other pertinent details owing to the person making the Will.
2. Intention of Testator– A Will is a declaration of intention of the person making the Will. By definition, intention relates to the future and is different from statement of narration of facts. A Will that only narrates the present state of affairs and does not carry a clear exposition of the intention of the Testator is not a Will.
3. Subject matter of a Will – A Will can only be made with respect to the property of testator who has legal rights and title over it.
4. Details of the subject matter – The details of the properties which the testator wants to give to his/her beneficiaries under his/her Will. In case of a movable property, the details and description of the property/ies should be clearly and individually mentioned.
5. Beneficiary Details– In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
6. Guardian (in case of a minor) – If the Testator wishes to give his/her property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.
7. Executor of the Will– The Testator should also appoint an Executor to his/her Will. An Executor is a person who is supposed implement the Will after the Testator’s death.
8. Signature and Date– The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.
9. Alteration/ Modification: It cannot be changed/ modified/ altered or disregarded after the event of his/her demise.
10. Forced or Coercion: A will, should not be obtained by force, coercion or undue influence. It will be a void will. A will, made under influence of intoxication or in such a state of body or mind, sufficient to take away the consent and will of the testator, is void.

DIFFERENCE BETWEEN A NOMINEE AND BENEFICIARY

The nominee acts as a trustee for testator’s assets and will be legally obligated to pass it to the rightful heirs. The nominee is then responsible for holding the proceeds in trust until the legal successor is able to collect the funds. The person named in the will is considered a lawful heir or beneficiary. A legatee/beneficiary is a person who inherits the property under a will. A legatee is a person who receives the property from the deceased person, as specified in the will. It is important to note that a legatee can be an individual or an organization, such as a charity or a trust.

A beneficiary in the will can also be appointed as an executor of the will. However, it is recommended to appoint an independent person who has no personal interest in the will to act as an executor. This can help ensure that the wishes of the testator are carried out smoothly and efficiently. Also, the witnesses should not be the beneficiary in the will.

In a legal sense, a nomination is simply a clause that allows the Nominee to claim the property as a “custodian” in the event that the property’s owner dies. However, there are a few essential points to keep in mind in this situation:

• Nominee will only be the trustee/ custodian for a property for a limited time, until the legal successor to the property/ estate is established, as per the Succession Act (or Will).
• Following that, the nominee will transfer the property/estate to the lawful heir/heirs in accordance with the law.
• The nominee and legal heir are two separate people; the nominee may be the legal heir if he or she has been nominated for assets or riches, and his or her name is also clearly specified as the legal heir in the will.
• Minor children may have guardian nominees who will be responsible for looking after their welfare and securing their portion of the deceased’s fortune. In certain situations, a family trust or private trust can be established for the benefit of children and legal successors.

CONCLUSION

A well drafted will can protect rightful owners of their rights and interests. If the nominee is not mentioned, the legal heir directly gets the ownership of assets. If both are not mentioned, then the succession law applies. The succession law defines the legal heir inheriting the assets and properties of the deceased person. The legal heirs can be one person or multiple people. Knowledgentia Consultants which is the best law firm for legal and corporate matters not only adapts to the changing legal scenario but also makes the transition for clients easy and accessible. We are your one-stop solution for all kinds of legal, compliance and supplemental matters concerning wills and their execution within the geography of India. In case of any query regarding this matter you may email us at info@knowledgentia.com or visit our website -https://knowledgentia.com/.